The First Amendment Degraded: Milkovich v. Lorain and a Continuing Sense of Loss on Its 20th Birthday

Authors

• Richard H. Weisberg, Benjamin N. Cardozo School of LawFollow

Publication Date

Fall 2010

Journal

South Carolina Law Review

Abstract

The article critiques the Supreme Court's decision in Milkovich v. Alabama, arguing that it undermines First Amendment protections by narrowing the distinction between fact and opinion in defamation cases. The Court's ruling, led by Chief Justice Rehnquist, held that statements implying false facts are actionable, even if framed as opinions. This decision, the article contends, reverses the constitutional logic of earlier precedents like New York Times Co. v. Sullivan, which trusted audiences to discern fact from opinion. The article warns that Milkovich erodes the First Amendment's faith in audience discernment, fostering a paternalistic judicial approach that stifles public debate.

Volume

62

Issue

1

First Page

157

Last Page

200

Publisher

University of South Carolina School of Law

Disciplines

Constitutional Law | First Amendment | Law | Legal History | Torts

Recommended Citation

Richard H. Weisberg, The First Amendment Degraded: Milkovich v. Lorain and a Continuing Sense of Loss on Its 20th Birthday, 62 S. C. L. Rev. 157 (2010).
https://larc.cardozo.yu.edu/faculty-articles/1288